Arnold & Porter Notches Important First Amendment Rights Victory for Client

Arnold & Porter scored a significant First Amendment victory for our client when the Tenth Circuit recognized the constitutional right of individuals to record police officers in the performance of their duties in public.

Arnold & Porter represented Abade Irizarry, a YouTube blogger and journalist who was retaliated against by an officer for filming a DUI traffic stop in 2019. Mr. Irizarry brought a pro se suit that was dismissed on the grounds that the officer had not violated any “clearly established” rights when the officer harassed and intimidated Mr. Irizarry as he sought to film the stop. The Tenth Circuit reversed the decision, finding that Mr. Irizarry had a clearly established First Amendment right to film the traffic stop and that the officer’s conduct was clearly retaliatory.

This ruling marks the first time the Tenth Circuit has recognized a First Amendment right to record police officers performing their official duties in public. The case was especially significant because in an important recent case decided in March 2021 (Frasier v. Evans) the Tenth Circuit had declined to recognize a right to record police. The Tenth Circuit’s ruling marks a turning point—over half of the federal courts of appeals have now recognized the right to record police—making it more likely that the right will be recognized as clearly established in other circuits going forward because it reflects a “consensus of persuasive authority.”

The Arnold & Porter pro bono team included partner Reeves Anderson, senior associate Andrew Tutt, who argued the case, and associates David S. Jelsma, Anna Kaul, Max Romanow, Laurel Ruza, and Brian Williams.